In July, 1939, the National Labor Relations Board issued an order requiring petitioners, the Press Co., Inc., and Gannett Co., Inc., to cease and desist from engaging in certain unfair labor practices, to offer to Austin J. Scannell, John Wanhope, Henry E. Christman, and Raymond H. Mowers immediate reinstatement, with back pay, to the same or equivalent positions held by them when their connection with Press Co. was severed, and finally, to post the usual notice of intention to comply with the order.
Press Co. and Gannett Co. then filed in this court separate petitions for review. The Board answered each petition and prayed a decree enforcing its order.
In 1936, Press Co. was publishing two newspapers in Albany, N. Y., the “Knickerbocker Press” in the morning, the “Albany Evening News” in the afternoon. Its common stock was owned by Gannett Co., a corporation with its principal office in Rochester, N. Y. Three of Press Co.’s directors were also directors of Gannett Co., and Frank E. Gannett was president of both corporations.
In November, 1935, B. J. Lewis was employed by Press Co. as editorial director of its morning and afternoon papers. In May, 1936, A. J. McDonald became its treasurer and general manager.
Tri-City Newspaper Guild is a labor organization affiliated with the Committee for Industrial Organization. Its membership consists of editorial employees of newspapers published in the cities of Albany, Troy, and Schenectady. It was organized in 1933 or 1934, and included a majority of the editorial employees of Press Co., but not until March, 1936, did it seek a collective contract with that company. Negotiations continued until February, 1937. At that time the president of the Guild was Zoe B. Fales", an employee of the rival Hearst paper in Albany and the wife of Henry E. Christman, a reporter on Press Co.’s afternoon paper. Press Co. was represented in the negotiations principally by McDonald and Lewis, and in February, 1937, a tentative agreement was reached which McDonald agreed “to submit to Rochester”. Before it had been acted upon by Press Co.’s directors, the Guild entered into an agreement with Press Co.’s Hearst competitor on terms less advantageous to employees. When informed of this, McDonald offered on behalf of Press Co. 'the same terms, which were refused. A little later Press Co. made an agreement more favorable to the Guild than the one entered into with the competitor.
In June, 1937, Press Co. sold its morning and Sunday circulations to the Hearst paper in exchange for the evening- circulation of the latter. The Hearst paper abandoned the evening field, and Press Co. abandoned the morning and Sunday fields and continued its afternoon paper, with the name changed to “Knickerbocker News”. This resulted in a necessary reduction of Press Co.’s employees from 514 to 356.
The selection of the survivors in the editorial department- was left to Lewis. When the list of those retained was posted with a notice that all others were dismissed, the Guild passed a provisional strike resolution and- through its committee demanded reinstatement of Hyde, Scannell, Wanhope, Christman, Jackson, Andrews, and Mohan. The Guild took the position that these men Lad been discharged because of sympathy for or activities in behalf of the organization. The New York State Mediator was asked by the Guild to intervene, which he did. Hyde repudiated the action of the Guild in his behalf. Press Co. offered to submit the question of discrimination against the others to arbitration by the mediator, but the Guild rejected this offer and filed charges with the Labor Board.
The Board issued its complaint against both Press Co. and Gannett Co., and charged unfair labor practices affecting commerce within the meaning of Sec. 8(1) *940and (3) and See. 2(6) and (7)1 of the National Labor Relations Act, including alleged discrimination in the discharge and refusal to reinstate Scanned, Wanhope, Christman, Jackson, Andrews, and Mohan. Subsequently the complaint was amended by including Mowers and Leonard, and by eliminating Mohan, who testified at the hearings that there had been no discrimination against him and he had not authorized the Guild to file charges in his behalf. The trial examiner found the charges sustained as to Scanned, Wanhope, and Christman, and recommended dismissal as to Jackson, Andrews, Leonard, and Mowers. Jackson and Leonard took no exceptions and were dropped from the proceedings, and in the final decision, concurred in by two members of the Board, the examiner’s findings were sustained as to ad the persons named except Mowers, as to whom they were overruled, and the order followed.
■ The grounds here urged by Press Co. are: (1) That the proceedings, findings, and order of the Board are repugnant to the due process clause of the Fifth Amendment of the Constitution; (2) that the order is an infringement of the freedom of the press; (3) that the Board was without jurisdiction because Press Co.’s operations did not directly and substantially affect interstate commerce; and (4) that the findings of the Board are not supported by substantial evidence.
First. Due Process.
It is argued that the Board had prejudged the case. Two witnesses testified to announcements at a Guild meeting that the Labor Board had given assurances of an open-and-shut case. And at the hearing, the trial attorney said: “The Board’s position is that both companies have violated the National Labor Relations Act.”
In the final argument, counsel for Press Co. cited these instances to show that the Board had violated due process. The Chairman asked counsel whether he believed that he or either of his two associates was guilty of making such commitments, and upon the reply of counsel that it was unnecessary to answer the question, the Chairman said: “ * * * you know that is sheer demagoguery for the benefit of the small audience to your rear.”
And finally, the Chairman stated to counsel upon his inquiry as to how much time he had left: “You have four minutes if you think it will do you any good”.
As to all of this, it is sufficient to say that there was no showing from which we can or should infer that either the trial examiner or the Board members had made statements showing prejudgment of the case. If any statements made by the prosecuting arm of the Board created the unfortunate impression that the case was foreclosed before it was begun, this was the result of those provisions of the statute which combine in the same agency not only the power to investigate, initiate, and prosecute, but as well the power to hear and decide. But responsibility for such matters is with the legislature and not with us. What is complained of as later occurring in the argument, may reasonably be considered as having resulted from the implications of counsel’s remarks, and we know of no rule of judicial conduct applicable either to court or board which requires silence in the face of an imputation of dishonorable conduct.
Second. Freedom of the press.
Petitioner’s argument, that any legislative restriction of the authority of a publisher to discharge an editorial employee is an abridgment of the freedom of the press, was used unsuccessfully in Associated Press v. Labor Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953, in which the Supreme Court distinctly held that there was no such constitutional objection to an act of Congress making it unlawful to discharge an employee for union activity. That is the charge here, and it raises an issue of fact which, under the rule in the cited case, the Board is competent to hear and decide.
Third. Interstate Commerce.
The Board’s findings of fact show that Press Co.’s afternoon newspaper had a circulation in excess of 45,000 copies, only 2,000 of which were circulated outside the State of New York; that 90 per cent of its raw material came from outside the State; that it is a member of the Associated Press and receives from and delivers to it news items for publication in the United States and foreign countries; and receives its syndicated articles, comic strips, and much of its advertising from outside the borders of its own State.
*941This is a sufficient finding that Press Co.’s operations affect interstate commerce under the rule announced by the Supreme Court in Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, and in Labor Board v. Fainblatt, 306 U.S. 601, 607, 59 S.Ct. 668, 83 L.Ed. 1014, in which it is said that the regulatory power of Congress over interstate commerce is not dependent upon whether the volume is great or small.
Fourth. The question of substantial evidence.
The Board has found that both petitioners interfered with Press Co.’s employees in the exercise of the rights guaranteed under Sec. 7 of the Act2 and engaged in an unfair labor practice within the meaning of Sec. 8(3) of the Act3 by discharging Scannell, Wanhope, and Christman, and by discriminating against Mowers in the conditions of his employment. We have, as we are in duty bound, carefully examined the more than one thousand pages of testimony to determine whether there is substantial evidence to sustain the Board’s findings. As we have already seen, this controversy grew out of the surrender by petitioner Press Co. of the morning field in Albany and the publication thereafter of one paper instead of two. This obviously made necessary the dismissal of part of the editorial force. During the period when both morning and afternoon papers were issued, there had been 74 persons employed in that department. Twenty-nine were dismissed and 45 retained. Of those retained, 34 were members of the Guild and 11 were nonmembers. Of the 29 dismissed, 27 were Guild members and 2 nonmembers. In addition to this, the Board emphasizes the fact that among the dismissed Guild members were 6 men who were said to be then its officers and leading spirits, and all of this, the Board finds, was' accomplished through the instrumentality of the editorial director, Lewis, who it says was known to have a bias against the Guild.
Lewis had been appointed editorial director in November, 1935. The Guild was then inactive. In order to inquire as to the background of the members of the staff, he called them singly into conference. One of those he talked to was Wanhope, then a reporter on the afternoon paper. Wan-hope in his testimony says the conversation centered around the Guild. Lewis asked him why there was any need for it and expressed the opinion that the publisher could be relied upon to take care of his people. “His attitude was that men and women in The Press Company should get more through his [Lewis’] efforts as editor than they ever could get through a Guild”. Lewis “likened the Guild to the hod carriers and bricklayers, and he did not think that professional men should stoop as low as to organize a labor union”. Wanhope disagreed, and said that in his opinion the only way newspaper men could get anything was through a co-operative effort in a labor union.
Mowers testified that Lewis had once said that he had been able to secure some raises in salaries and that Mowers was entitled to one but might not get it, “because of the activities of that God damned labor union”.
Scannell testified that, when he reported the belated account of one of the newspaper photographers for 168 hours overtime, Lewis asked how such an amount had accumulated without his notice, and added— “The God damn labor union is wrecking this newspaper”.
Hyde once heard Lewis speak of members of the Guild as “Guild rats”. The occasion is not clear, but the remark seems to have been connected with the scurrilous article written about Lewis, published in the Guild magazine, and sent to him anonymously and with the words “Read that, you skunk” typed on it. Later the Guild met to consider the matter. There was testimony that Miss Scott, the author, and Scannell opposed an apology and that finally a resolution repudiating or disclaiming responsibility for the article was adopted.
Miss Scott, the author of the article, testified to conversations she had had with Lewis, in which he stated he had never before been on a newspaper where the Guild was a factor and that as a pro*942fessional newspaperman he could not quite bring himself to see the place of a trade union in the newspaper industry, and he thought the members of the Guild were making a mistake.
One or two other witnesses said the general impression of those on the paper was that Lewis was out of sympathy with the Guild, and this doubtless was true. But giving due weight to the normal and natural effect of his statements, we are nevertheless of opinion that, without more, the Board was not justified in finding that alone they constituted an unfair labor practice. The labor law does not prohibit the right of opinion on the part of the employer, nor the expression of it. Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 230, 59 S.Ct. 206, 83 L.Ed. 126; Labor Board v. Union Pacific Stages, 9 Cir., 99 F.2d 153, 178, 179; Jefferson Electric Co. v. Labor Board, 7 Cir., 102 F.2d 949, 956; Labor Board v. Sunshine Mining Co., 9 Cir., 110 F.2d 780, 786; Montgomery Ward & Co. v. Labor Board, 7 Cir., 107 F.2d 555, 559; Humble Oil & Refining Co. v. Labor Board, 5 Cir., 113 F.2d 85, 92; Continental Box Co. v. Labor Board, 5 Cir., 113 F.2d 93, 96, 97; Midland Steel Products Co. v. Labor Board, 6 Cir., 113 F.2d 800, 804; Martel Mills Corporation v. Labor Board, 4 Cir., 114 F.2d 624, 633, 634; Labor Board v. Mathieson Alkali Works, 4 Cir., 114 F.2d 796; 802, 803; Labor Board v. Ford Motor Co., 6 Cir., 114 F.2d 905, 913.
Before oral statements of an employer may be held to be an unfair labor practice, it must appear that they interfered with, restrained, or coerced employees in the rights guaranteed by the Act, that is to say, the right to join labor organizations, to bargain collectively, and to engage in concerted activities. But nothing that Lewis is quoted as having said, nor the surrounding circumstances, conveys the idea that the employees had anything to fear because of their union activities. The comments arose either in a frank exchange of views with his staff; with reference to 'the effect of the Guild’s contract on the financial operation of the newspaper; or as a result of a natural outburst of anger at being cruelly- caricatured in the Guild’s paper. No witness suggests that there was at- any time any use of or even the suggestion of the economic, threat of discharge. • The Board bases its finding of coercion entirely on these remarks of Lewis. There is no finding of hostility or coercion, on the part of any other executive.
But the question of carrying out the Board’s order of reinstatement depends, in the circumstances we have here, not so much upon the question of coercion or lack of coercion, as upon whether Lewis purposely availed himself of the opportunity to reduce his staff in order to relieve himself of the presence of certain officers and members of the Guild whose union activities he personally did not relish or approve. That question is the real bone of contention in this case. There is, it is true, no direct evidence that he did, and the Board’s affirmative conclusion is grounded on the inference to be drawn from Lewis’ bias against the Guild as shown by his above quoted statements, his asserted familiarity with the activities of Guild members, his failure to testify, the excessive proportion of Guild members selected for dismissal, and a rather casual appraisal of the relative merits of employees.
If, in this state of the record, Lewis had gone on the witness stand and testified that he had exercised the right to discharge Scannell, Wanhope, and Christman because he was able to retain other men who were their superiors in the work of the newspaper, or because of any dereliction on their part in the discharge of their duties, or that in making his selections he had weighed the relative merits of those whom he retained and those whom he discharged and had based his selection on the ground of merit alone, .the case would have a different aspect. But since he refrained from, testifying at all, we are unable to say that the factor of Guild activity, which the Board considered the real cause, can be said to be without support in the evidence.
Petitioner contends that freedom of the press permits a publisher to withhold the basis of his selection of employees, and' prohibits any unfavorable inference from silence on -this subject. It is not easy to-see how a free press is either protected or promoted by the publisher’s refusal to-testify in denial of union discrimination and in frank explanation of the grounds for selection and dismissal of editorial workers any more than in the case of other workers. . Here, we think, the refusal, coupled with the inferences properly deducible therefrom, justified the Board’s action. Cf. Montgomery Ward & Co. v. Labor Board, 7 Cir., 107 F.2d 555, 559; *943Labor Board v. Remington Rand, 2 Cir., 94 F.2d 862, 871, certiorari denied, 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540; Labor Board v. Mackay Co., 304 U.S. 333, 346, 347, 58 S.Ct. 904, 82 L.Ed. 1381; Interstate Circuit v. United States, 306 U. S. 208, 226, 59 S.Ct. 467, 83 L.Ed. 610.
The case of Mowers is on a different footing. He was among those retained in July, and from then until his resignation .at the end of October, he was assigned to handle principally the school page, the daily broadcast, the church page, and obituaries. The “rewrite” work which he had formerly done was assigned to Brock, also a member of the Guild. His name was added to the complaint by amendment at the hearing, on the theory that petitioners had, because of his union membership and activity, ordered him “to perform such onerous duties, and to assume positions so inferior to that with which [he] had been accustomed” that he was forced to resign. The trial examiner found the evidence insufficient to show discrimination against him within the meaning of the Act. The Board held, on the contrary, that in view of Mowers’ previous experience and satisfactory record, the change in his duties was intended to demean his services and induce his resignation. His salary continued as formerly at $55 a week until his resignation. When two papers were published, his work was to accept stories for the afternoon paper by telephone from reporters and rewrite them for publication. He also did some “special feature work” for the Sunday edition. His testimony shows that his work was appreciated and frequently commended by Lewis and that up to the time of his resignation his relations with Lewis continued friendly. He likewise testified that at no time had he made any complaint to Lewis of his treatment or suggested to or requested of him any change in his assignments, but that he resigned because he found it impossible to carry on as a music editor of the Saturday paper, and this, together with the routine which had gathered on his desk, induced him to believe that he had better get out. Mowers’ own statements show that the school page and the church page are important features of a newspaper, and it would appear to us, as a matter of common knowledge, that the two daily news broadcasts, the preparation of which, as he testified, took the greater part of his time, are as important in this day and age as any feature of a newspaper. He resigned to accept a position with the State of New York at practically the same salary.
We have, therefore, a situation in which the employee, though well known to Lewis as an active member of the Guild, was retained with a change of duties, but without diminution of salary; he at no time complained to any head of the paper; and prior to his resignation he was offered and accepted another position. Considered in these aspects, we think the only rational conclusion is that Miowers’ action in resigning was due to the fact that he placed his personal inclinations for a particular character of work ahead of what the management considered the needs of the paper. Certainly, he was in much better position than the Board to know the real facts, and yet from the beginning of his testimony to its conclusion he never once said that his association with the Guild was the occasion of the change. Nor did he say anything else from which that conclusion should be drawn. Some one had to undertake the work assigned to him, and the Board has not found that less experienced men than he were assigned to do his previous work. In this state of the findings, it is difficult to see wherein lay the discrimination. That Mowers believed his particular talent for music' and in other fields was not recognized and for that reason he was discontented, is obvious, but it does not prove, nor does he say, that his assignment to other duties was intended to coerce his resignation. It is impossible to read his testimony and reach the conclusion that at any time he attributed his lack of congenial work to a purpose to get rid of him — much less a purpose actuated by his union activities. The vacancy created by his resignation was promptly given to another member of the Guild.
In this state of the record, we are unable to find any evidence to sustain the Board’s findhag that, “in view of Mow- ■ ers? previous experience and satisfactory record,” the material alteration in his duties can be assigned only to an intent to demean his services and induce his resignation. The Board does not say that Lewis did any of these things or authorized them to be done, and every fair implication to be drawn from the evidence is to the contrary, for Lewis appears always to have been his friend and his most favorable critic. But counsel for the Board argue that this conclusion is justified by what they say was *944a “display of hostility,” but again there is no evidence of any hostility and no claim by Mowers to that effect. Nor are we able to find a precedent for this action of the Board in any of the cited cases. In Labor Board v. American Potash Corporation, 9 Cir., 98 F.2d 488, 493, certiorari denied, 306 U.S. 643, 59 S.Ct. 582, 83 L.Ed. 1043, a foreman at 80 cents an hour was suddenly demoted to helper at 50 cents, and he was ■replaced by a man of less experience. In Clover Fork Coal Co. v. Labor Board, 6 Cir., 97 F.2d 331, 335, the resignation of the employees was induced by an employer-instigated demonstration of other employees, who refused to work with the union men. In Fort Wayne Company v. Labor Board, 7 Cir., 111 F.2d 869, and in Kansas City Power Co. v. Labor Board, 8 Cir., 111 F.2d 340, the Board ordered the restoration of two employees to their former positions because the transfers were found to have been based on union activities. Each of the men was active in union organization and had met the antagonism of the employer against unions. In the former case, the transfer involved loss of pay. In the latter, the transfer was from one plant to another so as to separate the organizer from the body of men he was organizing. Nothing comparable with any of this appears here. We are, therefore, of opinion that the Board’s order in respect to Mowers is not sustained by the evidence and should be annulled.
The Board found that Press Co.’s Rochester office was kept “currently advised by Lewis of the Guild’s activities and plans, and of the actions of individual Guild members.” The testimony cited to sustain this finding is that of Lewis’ private secretary, Alice Raymond, who was called as a witness for the Board. The manner in which her evidence was secured reflects no credit upon the Guild. Miss Raymond had been let out in July, in the reduction of the force, and shortly thereafter Christman came to her and asked her if she would transcribe some of her shorthand notes which he showed her, but this she refused to do, and when she asked him where he had got her notes, he refused to tell her. Subsequently counsel for the Board sent for her, and she answered his questions about the nature of Lewis’ correspondence. She was then subpoenaed and testified that it was Lewis’ habit, after Guild meetings, to write to Rochester; that the general nature of the letters was “what went on at the meetings and what the Guild was planning”; that Miss Scott and Scannell were mentioned in the correspondence; and that the letters to Rochester were much more frequent before the contract with the Guild than afterwards. The Board’s attorney did not ask her to read her notes, but relied upon her recollection of what they contained, and her testimony of the purport of the letters shows no more than that the correspondence contained references to the activities of the Guild and two or three of its members. The reference to Miss Scott, the author of the “skunk” article, is not significant, since she was retained in the new set-up with an increased salary, and Miss Raymond’s recollection of the reference to Scannell tends to justify Lewis’ action in dismissing him, since it related not to union activity, but to his failure to comply with Lewis’ instructions in the work he was given to do. The reference to Wanhope is unexplained, except that Lewis regarded him as a “red”. The Board’s finding on this evidence is that “respondents have kept under surveillance the meetings of the Guild and the activities of its members” and thus violated Sec. 8(1) of the Act, 29 U.S.C.A. § 158(1).
This is the equivalent of saying that surveillance ipso facto violated the law, and the Board relies upon a long list of cases to sustain such a doctrine. We have examined the cases relied upon, and we are unable to say that any one of them unqualifiedly so holds, and a recent decision in the Ninth Circuit4 is to the effect that surveillance, unaccompanied by interference, coercion, or restraint, is not an unfair labor practice. However, this may be, we have reached the conclusion that the Board’s order to cease surveillance may be sustained, because there is evidence that on the day following the Guild meetings Lewis was in possession of detailed information concerning what went on at the meetings and what the Guild was planning, and because there is further evidence (not referred to by the Board) that during a number of conferences Lewis assured employees that “they [the employers] were well apprised of what was happening in the Guild”. Taken in conjunction with Lewis’ failure to explain how he acquired his information, this evidence tends to show that he kept himself informed by some means *945of the Guild’s plans, and this we think may be called surveillance. In any case, the substantiated finding that Lewis later dismissed employees for their Guild activities supports the conclusion that the knowledge thereby acquired did actually interfere with union activity.
Fifth. Was Gannett Co. a proper respondent?
This question is raised by the separate petition of Gannett Co. The complaint, as we have seen, issued against both corporations, and the Board has found “on the basis of unified ownership, management and control” that Gannett Co. acts for Press Co. and is an employer of the employees involved in the case. The order is likewise directed in all its terms against both corporations.
The facts found by the Board and supported by the evidence show that Press Co. was a corporation organized and existing under the laws of New York; that Gannett Co., Inc., also a New York corporation, owned all of Press Co.’s common stock and half its preferred stock, but none of its bonds; that the three highest offices in each corporation were held by the same men, Gannett being president of both companies, Tripp vice-president, and Cruickshank secretary; and that these three comprised a majority of Press Co.’s directors. The Board’s report shows that Gannett Co., Inc., owns the entire capital stock of some newspaper corporations and a majority of stock in a number of others. Each of the papers, so far as we are able to determine, is owned and operated by a separate corporation. Frank E. Gannett is president of each one, and controls its policy. There is unquestionably a close community of interest between the different papers, but there is no testimony that the Gannett Co. ever exercised control of the internal operation of the newspaper published by Press Co. There is positive evidence to the contrary. TEe finding of the Board as to exchange of views between the officials of the two companies has reference to various conferences of executives of all the newspapers “for group discussions” “of their common problems”. Counsel for the Board calls particular attention to the activities of one Atwood, whom the Board describes as “the associate director of the Gannett newspapers”. The references by counsel to the testimony of witnesses in relation to Atwood’s activities show that he would advise on editorial and advertising policy, but only in one instance is he referred to in relation to any matter connected with this case, and that incident occurred at the time of the abandonment by Press Co. of the morning newspaper field. On that occasion he is said to have “collaborated with” Lewis in selecting the list of employees to be retained. But the Board does not stress this incident, obviously because there is no claim that Atwood was hostile to. the union. And McDonald, general manager of Press Co., testified, and his testimony is uncontradicted, that Atwood had no power in the matter. This, in turn, is confirmed by findings of the Board that Lewis, Press Co.’s editorial director, was alone the responsible agent in the transaction.
A careful examination of the evidence shows a complete absence of any which ought to be accepted by a reasonable mind tending to show that Press Co. was not self-governing. Gannett was its president, and with Tripp and Cruickshank, its other directing officers, resided and had offices in Rochester, and its policies were determined there. The statement of witnesses that various matters were referred by the local officers of Press Co. “to Rochester” for decision, is certainly more consonant with the idea that the references were to its own officers there rather than to the Gannett corporation. And yet the Board rejects this natural and reasonable conclusion because of the “dual capacities of the policy-making executives and the realities of the relationship”, whatever that may mean. Unless, therefore, the community of interest of which we have spoken, plus advice and assistance when needed, is enough to wipe out and destroy the corporate structure, the Board’s conclusion that Gannett Co. was equally responsible in its corporate capacity for the acts done by Press Co. in its corporate capacity, cannot be sustained. Of course, it is true that Gannett Co., as the owner of all the voting stock of Press Co., was in position to dictate its action in any corporate matter, but until legislation is adopted outlawing holding companies, this alone, in circumstances like these, is not sufficient to annul corporate identity; and this case, after all, concerns only the single question whether, in the reorganization of its newspaper personnel and the necessary reduction in its editorial staff, Press Co. violated the National Labor Relations Act, and our holding that it did follows the reasoning of the Board and its' argument in this court to sustain that rea*946soiling. And nothing — certainly nothing substantial — is offered to show that the Gannett Co. itself aided and abetted in that result.
In its opinion the Board again and again places on Lewis sole responsibility for discrimination between Guild and non-Guild members. Thus, in summing up the reasons for its finding, the Board says: “ * * * the selection of the persons to be discharged was delegated to B. J. Lewis, who was, as we have found, actively opposed to the Guild. Moreover, the duty of selection was committed to Lewis despite the respondents’ full knowledge of Lewis’ Guild animus, which had been the subject of previous complaint by the Guild. * * * although the duty of selecting the restricted staff devolved on Lewis alone, and he alone was in a position to testify as to the basis upon which his selection was made, he was not offered as a witness and the natural inference to be drawn from his known bias against the Guild and the excessive proportion of Guild members selected for dismissal was allowed to stand without contradiction.”
Moreover, in the brief filed in this cause counsel for the Board say under the heading — “Lewis’ Sole Discretion in Selecting Employees for Discharge” — that Lewis had displayed bias against the Guild, and that Press Co. knew of this bias and upon complaint had substituted McDonald, vice-president and general manager of Press Co., in Lewis’ place as negotiator at the time the contract between Press Co. and the Guild was made, and yet, said the Board, when the necessity of selection arose because of the reduction in staff, Press Co. vested in Lewis absolute discretion to choose the editorial employees to be retained. The findings of the Board in these respects we have sustained, and both the Board’s conclusion and our approval are clearly predicated on the fact that Lewis, Press Co.’s editorial director, was alone responsible for the interference With Guild activities. A careful inspection of the record shows unmistakably that the unlawful acts charged here were provable only by a showing that Lewis, Press Co.’s editor, was responsible for them, for there is no evidence of animosity on the part of anyone else, and the proof offered by the Board was directed, first, to showing through various statements made by Lewis that he was 'opposed to the Guild in the newspaper profession and to having it in an organization of which he was the head and, second, that the unlawful discrimination which ensued was the act of Lewis alone. From all of this the Board properly, as we hold, drew the inference that the unlawful discrimination was the result of Lewis’ personal animosity. In this view, it would seem to us hardly fair, first, to hold Press Co. guilty' in delegating to Lewis sole power to select the employees for dismissal, coupled with the exercise by Lewis of the power, and then to hold, in order to reach Press Co.’s parent, Gannett Co., that the latter was equally responsible on the wholly opposite theory that the unlawful act was not that of Lewis alone, but was shared by Atwood, an employee of the Gannett Co. who stood by and saw it done.
Sec. 10(c), 29 U.S.C.A. § 160(c), authorizes an order against a person (corporation) only if the Board finds that person to have engaged in unfair practices. There is, as we have seen, no evidence on which to base a finding that Gannett Co. itself participated in any such practices. Hence its responsibility, if any, must we think rest, if it is found, on an agency relationship with Press Co. Ownership of stock and identity of officers by themselves do not create the relation. Commerce Trust Co. v. Woodbury, 8 Cir., 77 F.2d 478, 487. There must appear in addition such control by the parent as to show that the subsidiary is being used as its instrument. Chicago R. Co. v. Minneapolis Association, 247 U.S. 490, 500-502, 38, S.Ct. 553, 62 L.Ed. 1229. Press Co., as we have seen, was a separate legal entity, and whatever may have been the motives leading to its creation, it still retained its identity for legal proceedings. Peterson v. Chicago, R. I. & P. R. Co., 205 U.S. 364, 392, 27 S.Ct. 513, 51 L.Ed. 841; People v. American Bell Telephone Co., 117 N.Y. 241, 22 N.E. 1057; American Cyanamid Co. v. Wilson & Toomer F. Co., 5 Cir., 51 F.2d 665, 670. In the latter case it was said: “As a rule, one who contracts with a corporation must look to it alone for performance. The ownership by defendant of all the stock of the phosphate company did not merge the corporations, nor did the having of the same officers and offices end the corporate activity of either or by itself make one a mere agency or instrumentality of the other.”
And see also, Majestic Co. v. Orpheum Circuit, 8 Cir., 21 F.2d 720, 724, and the cases, cited on this rule. The well-known exception to the rule is stated in Chicago *947R. Co. v. Minneapolis Association, supra,— that a court will not permit itself to be blinded or deceived by mere forms of law but, regardless of fictions, will deal with the substance of the transaction involved as if the corporate agency did not exist and as the justice of the case may require.
Here we have an active solvent corporation exercising its charter powers in the normal and ordinary way and with a full staff of officers and directors with power of control. There is no evidence in the case, nor does the Board suggest, that its corporate entity is a fiction or that it should be disregarded in order that justice may be done. Its employees look to it and not to the Gannett Co. for the performance of its contract with them. For violation of its duties or obligations, it should be and is now being held responsible, and there is not even a suggestion in the record that a judgment against it will not be effective to that end. The Gannett Co. participated in the wrong complained of only in failing to assert its corrective powers after the event, but that is not enough to justify holding it directly responsible for the act itself. Certainly we are referred to no case which goes so far. Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 59 S. Ct. 206, 83 L.Ed. 126, in which the order issued against the parent and its subsidiary companies constituting one integrated system employing 42,000 employees under one general management, is vitally different. Nor is the case like Labor Board vi Lund; 8 Cir., 103 F.2d 815, in which the sole stockholder had personally interfered with unionization; or Labor Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307, in which the respondents actually employed the men, although the work was done for a subsidiary; or Labor Board v. Hopwood Retinning Co., 2 Cir., 98 F.2d 97; Id., 2 Cir., 104 F.2d 302, where there was an attempted evasion of the Act by shifting ownership from one corporation to another.
In Labor Board v. Hearst, 9 Cir., 102 F.2d 658, 663, the court enforced an order against the immediate employer and against parent corporations as well. “Because of the unified control,” says the opinion, “the only way of effective prevention of the unfair labor practices, is to compel all respondents to cease and desist the unfair labor practices. All act ‘directly or indirectly’ for Hearst Publications, Inc., the nominal employer here, which brings them within the definition of ‘employer’ which is included in the term ‘person.’ ” The Board’s findings (2 NLRB 530, 533) showed an intricate system of corporate structure and direct control over the immediate employer. Here the evidence wholly fails to show control, active or otherwise, but on the contrary on the issue in question shows that Press Co., acting through its own editorial director in the discharge of his official duties, did the wrongful acts, and distinguishes the Hearst case on that ground.
One other matter has been brought to our attention. The order requires Press Co. to pay over to relief agencies any amounts paid in the interim to the employees discriminatorily discharged. The Board contends in its brief that this part of the order is a valid exercise of the Board’s discretion. On this they are now foreclosed by Republic Steel Corporation v. Labor Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed.-.
It follows that the order of the Board must be modified. The name of Gannett Co. must be stricken. Paragraph 1(a), directed against discrimination by discharge, and paragraph 1(b), against surveillance, have support and should remain. But, as there was no evidence of other coercion, restraint, or interference, 1(c) should be set aside.5 From paragraph 2(a), the name of Raymond H. Mowers should be stricken, and 2(c), requiring back pay for Mowers, should likewise be set aside. From paragraph 2(b) the concluding language, “and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects;” must also be stricken. As so modified the order will be enforced.
It is so ordered.
29 U.S.C.A. §§ 158(1) (3), 152(6) (7).
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively .through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C.A. § 157.
“It shall be an unfair labor practice for an employer — * * * (3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U.S.C.A. § 158(3).
Labor Board v. National M. B. Co., 105 F.2d 652, 657.
See Memorandum on petition for rehearing with reference to paragraph 1(c), 118 F.2d 954.